Buscaglia ex rel. Tutko v. Tutko

Order unanimously reversed, without costs, and matter remitted to Erie County Family Court for further proceedings, in accordance with the following memorandum: The petition seeks an order of support pursuant to article 4 of the Family Court Act. Respondent informed the court that he was willing to support his wife but would not support her children of a prior marriage because he was separated from her, and the children were in her custody. The court, without a hearing, directed that respondent pay $99.35 per month for the support of his wife, but found that respondent was not liable for the support of his stepchildren solely on the basis of the separation and the absence of custody. Petitioner appeals from that part of the order determining that respondent is not liable for the support of his stepchildren. There is no cross appeal. The applicable statutes impose an obligation of support on a spouse or a parent and further provide that stepparents “shall in like manner be responsible for the support of children under the age of twenty-one years” (Family Ct Act, § 415; Social Services Law, § 101, subd 1). Section 415 of the Family Court Act further provides that “[i]n its discretion, the court may require any such person to contribute a fair and reasonable sum for the support of such relative”. “It has been held consistently that liability of a stepparent * * * may be imposed for the support of stepchildren provid[ed] that the minors are, or are likely to become, public charges” (Baird v Baird, 45 AD2d 930). It has long been recognized that separation from a spouse or lack of custody of stepchildren will not relieve a stepparent of that obligation (Matter of Director of Child Support Enforcement Bur. v Fariello, 74 AD2d 905; Matter of Mercer v Mercer, 26 AD2d 450; see, also, Baird v Baird, supra). Accordingly, we remit to Family Court for a hearing and a determination in the exercise of its discretion of whether the respondent should pay support for his stepchildren and, if so, how much. (Appeal from order of Erie County Family Court, Killeen, J. — support.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Boomer, JJ.